SUSAN FRIETSCHE / WITOLD WALCZAK

UPMC vs. fair hiring

The health care giant is putting at risk a pillar of civil rights protection

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As we reflect on the long history of struggle for civil rights in America, it is disturbing to know that UPMC — Pennsylvania’s largest private employer and the Pittsburgh region’s largest provider of health care — is trying to roll back historic civil rights protections that have helped reduce employment discrimination across the country. Despite UPMC’s stated commitment to providing equal opportunities for women and people of color, it is pursuing a legal challenge that has, sadly, turned the health care giant into an enemy of civil rights.

Although UPMC’s brazen move has alarmed leading women’s, civil rights and workers’ groups, UPMC denies anything very serious is happening. What is really going on, and why are organizations like the NAACP Legal Defense Fund, the Women’s Law Project and the American Civil Liberties Union demanding that UPMC withdraw its legal challenge?

Since 1965, our country has required that businesses that work for the federal government adhere to fair-hiring practices. We’re not talking about quotas. We’re talking about making sure that federal contractors don’t discriminate against anyone on the basis of gender or race and by requiring that they document their hiring processes and results. These rules, which have over the years been upheld by the courts, have helped diversify workforces and make them more reflective of local communities.

Several years ago, UPMC received a multimillion-dollar contract to provide care to federal workers who live in the Pittsburgh region. But when selected for a compliance review in 2004, UPMC first refused to answer basic questions about its hiring practices and then refused to allow the government to conduct a routine inspection.

At first, UPMC claimed it is not a subcontractor. But three levels of judges said that it is, including administrative law judges in the U.S. Department of Labor (during the Bush administration) and a U.S. District Court judge.

Having lost its earlier arguments, UPMC decided to attack equal opportunity itself and now argues that the entire law is unconstitutional. This law has been upheld and enforced by any number of courts and has been promoted by Republican and Democratic administrations alike. By raising this aggressive challenge, UPMC threatens to eradicate vital workplace protections that have been in effect for nearly 50 years.

If UPMC is successful and the U.S. Court of Appeals for the District of Columbia or the U.S. Supreme Court were to rule in its favor on the broad issue of the law’s constitutionality, no federal contractor anywhere in the country would be required to comply with the equal-opportunity regulations. And for what purpose? For all we know, UPMC might be in perfect compliance with federal civil rights standards, but its refusal to comply with its reporting obligations is threatening to bring down a pillar of our nation’s civil rights laws.

Before our country had fair-employment rules and anti-discrimination regulations, women and minorities were completely locked out of entire occupations. While workplace fairness has advanced over the last few decades, gender, race and other forms of employment discrimination unfortunately have persisted. This is of particular concern in the health care sector, where the Bureau of Labor Statistics documents that people of color are under-represented in most job categories and women are paid significantly less than male peers. The federal law at issue has been a bright light in reducing employment discrimination by federal contractors.

Workforce diversity has been closely associated with reduced health care disparities and better patient care. If patient care is UPMC’s top priority, it should be doing everything it can to promote a diverse workforce.

UPMC has publicly stated its intent is not to undo these long-standing protections, yet its actions in court speak otherwise. UPMC’s spokesperson has claimed that critics are “mischaracterizing” the issue.

This is not true, and the legal record demonstrates this. In a Sept. 13, 2013, brief filed in the U.S. Court of Appeals for the District of Columbia, UPMC repeatedly says the 50-year-old law “raises serious constitutional problems” and should be invalidated.

There is still an opportunity for UPMC to do the right thing. We call on all community members who support fairness and equal opportunity in the workplace to join us in demanding that UPMC’s board of directors immediately withdraw its legal challenge to a venerable and essential pillar of civil rights law that has served this country well for nearly 50 years.

Susan Frietsche is a senior staff attorney for the Women’s Law Project. Witold Walczak is the legal director of the ACLU of Pennsylvania.

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